in the same hands, whether of one, a few, or many, and whether
hereditary, selfappointed, or elective, may justly be pronounced the
very definition of tyranny. Were the federal Constitution, therefore,
really chargeable with the accumulation of power, or with a mixture of
powers, having a dangerous tendency to such an accumulation, no further
arguments would be necessary to inspire a universal reprobation of the
system. I persuade myself, however, that it will be made apparent to
every one, that the charge cannot be supported, and that the maxim on
which it relies has been totally misconceived and misapplied. In order
to form correct ideas on this important subject, it will be proper to
investigate the sense in which the preservation of liberty requires
that the three great departments of power should be separate and
distinct. The oracle who is always consulted and cited on this subject
is the celebrated Montesquieu. If he be not the author of this
invaluable precept in the science of politics, he has the merit at
least of displaying and recommending it most effectually to the
attention of mankind. Let us endeavor, in the first place, to ascertain
his meaning on this point. The British Constitution was to Montesquieu
what Homer has been to the didactic writers on epic poetry. As the
latter have considered the work of the immortal bard as the perfect
model from which the principles and rules of the epic art were to be
drawn, and by which all similar works were to be judged, so this great
political critic appears to have viewed the Constitution of England as
the standard, or to use his own expression, as the mirror of political
liberty; and to have delivered, in the form of elementary truths, the
several characteristic principles of that particular system. That we
may be sure, then, not to mistake his meaning in this case, let us
recur to the source from which the maxim was drawn. On the slightest
view of the British Constitution, we must perceive that the
legislative, executive, and judiciary departments are by no means
totally separate and distinct from each other. The executive magistrate
forms an integral part of the legislative authority. He alone has the
prerogative of making treaties with foreign sovereigns, which, when
made, have, under certain limitations, the force of legislative acts.
All the members of the judiciary department are appointed by him, can
be removed by him on the address of the two Houses of Parliament, and
form, when he pleases to consult them, one of his constitutional
councils. One branch of the legislative department forms also a great
constitutional council to the executive chief, as, on another hand, it
is the sole depositary of judicial power in cases of impeachment, and
is invested with the supreme appellate jurisdiction in all other cases.
The judges, again, are so far connected with the legislative department
as often to attend and participate in its deliberations, though not
admitted to a legislative vote. From these facts, by which Montesquieu
was guided, it may clearly be inferred that, in saying “There can be no
liberty where the legislative and executive powers are united in the
same person, or body of magistrates,” or, “if the power of judging be
not separated from the legislative and executive powers,” he did not
mean that these departments ought to have no PARTIAL AGENCY in, or no
CONTROL over, the acts of each other. His meaning, as his own words
import, and still more conclusively as illustrated by the example in
his eye, can amount to no more than this, that where the WHOLE power of
one department is exercised by the same hands which possess the WHOLE
power of another department, the fundamental principles of a free
constitution are subverted. This would have been the case in the
constitution examined by him, if the king, who is the sole executive
magistrate, had possessed also the complete legislative power, or the
supreme administration of justice; or if the entire legislative body
had possessed the supreme judiciary, or the supreme executive
authority. This, however, is not among the vices of that constitution.
The magistrate in whom the whole executive power resides cannot of
himself make a law, though he can put a negative on every law; nor
administer justice in person, though he has the appointment of those
who do administer it. The judges can exercise no executive prerogative,
though they are shoots from the executive stock; nor any legislative
function, though they may be advised with by the legislative councils.
The entire legislature can perform no judiciary act, though by the
joint act of two of its branches the judges may be removed from their
offices, and though one of its branches is possessed of the judicial
power in the last resort. The entire legislature, again, can exercise
no executive prerogative, though one of its branches constitutes the
supreme executive magistracy, and another, on the impeachment of a
third, can try and condemn all the subordinate officers in the
executive department. The reasons on which Montesquieu grounds his
maxim are a further demonstration of his meaning. “When the legislative
and executive powers are united in the same person or body,” says he,
“there can be no liberty, because apprehensions may arise lest THE SAME
monarch or senate should ENACT tyrannical laws to EXECUTE them in a
tyrannical manner. “ Again: “Were the power of judging joined with the
legislative, the life and liberty of the subject would be exposed to
arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all
the violence of AN OPPRESSOR. “ Some of these reasons are more fully
explained in other passages; but briefly stated as they are here, they
sufficiently establish the meaning which we have put on this celebrated
maxim of this celebrated author.
If we look into the constitutions of the several States, we find that,
notwithstanding the emphatical and, in some instances, the unqualified
terms in which this axiom has been laid down, there is not a single
instance in which the several departments of power have been kept
absolutely separate and distinct. New Hampshire, whose constitution was
the last formed, seems to have been fully aware of the impossibility
and inexpediency of avoiding any mixture whatever of these departments,
and has qualified the doctrine by declaring “that the legislative,
executive, and judiciary powers ought to be kept as separate from, and
independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL
ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE
WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND
AMITY. “ Her constitution accordingly mixes these departments in
several respects. The Senate, which is a branch of the legislative
department, is also a judicial tribunal for the trial of impeachments.
The President, who is the head of the executive department, is the
presiding member also of the Senate; and, besides an equal vote in all
cases, has a casting vote in case of a tie. The executive head is
himself eventually elective every year by the legislative department,
and his council is every year chosen by and from the members of the
same department. Several of the officers of state are also appointed by
the legislature. And the members of the judiciary department are
appointed by the executive department. The constitution of
Massachusetts has observed a sufficient though less pointed caution, in
expressing this fundamental article of liberty. It declares “that the
legislative department shall never exercise the executive and judicial
powers, or either of them; the executive shall never exercise the
legislative and judicial powers, or either of them; the judicial shall
never exercise the legislative and executive powers, or either of them.
“ This declaration corresponds precisely with the doctrine of
Montesquieu, as it has been explained, and is not in a single point
violated by the plan of the convention. It goes no farther than to
prohibit any one of the entire departments from exercising the powers
of another department. In the very Constitution to which it is
prefixed, a partial mixture of powers has been admitted. The executive
magistrate has a qualified negative on the legislative body, and the
Senate, which is a part of the legislature, is a court of impeachment
for members both of the executive and judiciary departments. The
members of the judiciary department, again, are appointable by the
executive department, and removable by the same authority on the
address of the two legislative branches.
Lastly, a number of the officers of government are annually appointed
by the legislative department. As the appointment to offices,
particularly executive offices, is in its nature an executive function,
the compilers of the Constitution have, in this last point at least,
violated the rule established by themselves. I pass over the
constitutions of Rhode Island and Connecticut, because they were formed
prior to the Revolution, and even before the principle under
examination had become an object of political attention. The
constitution of New York contains no declaration on this subject; but
appears very clearly to have been framed with an eye to the danger of
improperly blending the different departments. It gives, nevertheless,
to the executive magistrate, a partial control over the legislative
department; and, what is more, gives a like control to the judiciary
department; and even blends the executive and judiciary departments in
the exercise of this control. In its council of appointment members of
the legislative are associated with the executive authority, in the
appointment of officers, both executive and judiciary. And its court
for the trial of impeachments and correction of errors is to consist of
one branch of the legislature and the principal members of the
judiciary department. The constitution of New Jersey has blended the
different powers of government more than any of the preceding. The
governor, who is the executive magistrate, is appointed by the
legislature; is chancellor and ordinary, or surrogate of the State; is
a member of the Supreme Court of Appeals, and president, with a casting
vote, of one of the legislative branches. The same legislative branch
acts again as executive council of the governor, and with him
constitutes the Court of Appeals. The members of the judiciary
department are appointed by the legislative department and removable by
one branch of it, on the impeachment of the other. According to the
constitution of Pennsylvania, the president, who is the head of the
executive department, is annually elected by a vote in which the
legislative department predominates. In conjunction with an executive
council, he appoints the members of the judiciary department, and forms
a court of impeachment for trial of all officers, judiciary as well as
executive. The judges of the Supreme Court and justices of the peace
seem also to be removable by the legislature; and the executive power
of pardoning in certain cases, to be referred to the same department.
The members of the executive council are made EX-OFFICIO justices of
peace throughout the State. In Delaware, the chief executive magistrate
is annually elected by the legislative department. The speakers of the
two legislative branches are vice-presidents in the executive
department. The executive chief, with six others, appointed, three by
each of the legislative branches constitutes the Supreme Court of
Appeals; he is joined with the legislative department in the
appointment of the other judges. Throughout the States, it appears that
the members of the legislature may at the same time be justices of the
peace; in this State, the members of one branch of it are EX-OFFICIO
justices of the peace; as are also the members of the executive
council. The principal officers of the executive department are
appointed by the legislative; and one branch of the latter forms a
court of impeachments. All officers may be removed on address of the
legislature. Maryland has adopted the maxim in the most unqualified
terms; declaring that the legislative, executive, and judicial powers
of government ought to be forever separate and distinct from each
other. Her constitution, notwithstanding, makes the executive
magistrate appointable by the legislative department; and the members
of the judiciary by the executive department. The language of Virginia
is still more pointed on this subject. Her constitution declares, “that
the legislative, executive, and judiciary departments shall be separate
and distinct; so that neither exercise the powers properly belonging to
the other; nor shall any person exercise the powers of more than one of
them at the same time, except that the justices of county courts shall
be eligible to either House of Assembly. “ Yet we find not only this
express exception, with respect to the members of the inferior courts,
but that the chief magistrate, with his executive council, are
appointable by the legislature; that two members of the latter are
triennially displaced at the pleasure of the legislature; and that all
the principal offices, both executive and judiciary, are filled by the
same department. The executive prerogative of pardon, also, is in one
case vested in the legislative department. The constitution of North
Carolina, which declares “that the legislative, executive, and supreme
judicial powers of government ought to be forever separate and distinct
from each other,” refers, at the same time, to the legislative
department, the appointment not only of the executive chief, but all
the principal officers within both that and the judiciary department.
In South Carolina, the constitution makes the executive magistracy
eligible by the legislative department.
It gives to the latter, also, the appointment of the members of the
judiciary department, including even justices of the peace and
sheriffs; and the appointment of officers in the executive department,
down to captains in the army and navy of the State.
In the constitution of Georgia, where it is declared “that the
legislative, executive, and judiciary departments shall be separate and
distinct, so that neither exercise the powers properly belonging to the
other,” we find that the executive department is to be filled by
appointments of the legislature; and the executive prerogative of
pardon to be finally exercised by the same authority. Even justices of
the peace are to be appointed by the legislature. In citing these
cases, in which the legislative, executive, and judiciary departments
have not been kept totally separate and distinct, I wish not to be
regarded as an advocate for the particular organizations of the several
State governments. I am fully aware that among the many excellent
principles which they exemplify, they carry strong marks of the haste,
and still stronger of the inexperience, under which they were framed.
It is but too obvious that in some instances the fundamental principle
under consideration has been violated by too great a mixture, and even
an actual consolidation, of the different powers; and that in no
instance has a competent provision been made for maintaining in
practice the separation delineated on paper. What I have wished to
evince is, that the charge brought against the proposed Constitution,
of violating the sacred maxim of free government, is warranted neither
by the real meaning annexed to that maxim by its author, nor by the
sense in which it has hitherto been understood in America. This
interesting subject will be resumed in the ensuing paper.
PUBLIUS.
THE FEDERALIST.
No. XLVIII.
These Departments Should Not Be So Far Separated as to Have No
Constitutional Control Over Each Other
From the New York Packet. Friday, February 1, 1788.
MADISON
To the People of the State of New York:
It was shown in the last paper that the political apothegm there
examined does not require that the legislative, executive, and
judiciary departments should be wholly unconnected with each other. I
shall undertake, in the next place, to show that unless these
departments be so far connected and blended as to give to each a
constitutional control over the others, the degree of separation which
the maxim requires, as essential to a free government, can never in
practice be duly maintained. It is agreed on all sides, that the powers
properly belonging to one of the departments ought not to be directly
and completely administered by either of the other departments. It is
equally evident, that none of them ought to possess, directly or
indirectly, an overruling influence over the others, in the
administration of their respective powers. It will not be denied, that
power is of an encroaching nature, and that it ought to be effectually
restrained from passing the limits assigned to it.
After discriminating, therefore, in theory, the several classes of
power, as they may in their nature be legislative, executive, or
judiciary, the next and most difficult task is to provide some
practical security for each, against the invasion of the others.
What this security ought to be, is the great problem to be solved. Will
it be sufficient to mark, with precision, the boundaries of these
departments, in the constitution of the government, and to trust to
these parchment barriers against the encroaching spirit of power? This
is the security which appears to have been principally relied on by the
compilers of most of the American constitutions. But experience assures
us, that the efficacy of the provision has been greatly overrated; and
that some more adequate defense is indispensably necessary for the more
feeble, against the more powerful, members of the government. The
legislative department is everywhere extending the sphere of its
activity, and drawing all power into its impetuous vortex. The founders
of our republics have so much merit for the wisdom which they have
displayed, that no task can be less pleasing than that of pointing out
the errors into which they have fallen. A respect for truth, however,
obliges us to remark, that they seem never for a moment to have turned
their eyes from the danger to liberty from the overgrown and
all-grasping prerogative of an hereditary magistrate, supported and
fortified by an hereditary branch of the legislative authority. They
seem never to have recollected the danger from legislative usurpations,
which, by assembling all power in the same hands, must lead to the same
tyranny as is threatened by executive usurpations. In a government
where numerous and extensive prerogatives are placed in the hands of an
hereditary monarch, the executive department is very justly regarded as
the source of danger, and watched with all the jealousy which a zeal
for liberty ought to inspire. In a democracy, where a multitude of
people exercise in person the legislative functions, and are
continually exposed, by their incapacity for regular deliberation and
concerted measures, to the ambitious intrigues of their executive
magistrates, tyranny may well be apprehended, on some favorable
emergency, to start up in the same quarter. But in a representative
republic, where the executive magistracy is carefully limited; both in
the extent and the duration of its power; and where the legislative
power is exercised by an assembly, which is inspired, by a supposed
influence over the people, with an intrepid confidence in its own
strength; which is sufficiently numerous to feel all the passions which
actuate a multitude, yet not so numerous as to be incapable of pursuing
the objects of its passions, by means which reason prescribes; it is
against the enterprising ambition of this department that the people
ought to indulge all their jealousy and exhaust all their precautions.
The legislative department derives a superiority in our governments
from other circumstances. Its constitutional powers being at once more
extensive, and less susceptible of precise limits, it can, with the
greater facility, mask, under complicated and indirect measures, the
encroachments which it makes on the co-ordinate departments. It is not
unfrequently a question of real nicety in legislative bodies, whether
the operation of a particular measure will, or will not, extend beyond
the legislative sphere. On the other side, the executive power being
restrained within a narrower compass, and being more simple in its
nature, and the judiciary being described by landmarks still less
uncertain, projects of usurpation by either of these departments would
immediately betray and defeat themselves. Nor is this all: as the
legislative department alone has access to the pockets of the people,
and has in some constitutions full discretion, and in all a prevailing
influence, over the pecuniary rewards of those who fill the other
departments, a dependence is thus created in the latter, which gives
still greater facility to encroachments of the former. I have appealed
to our own experience for the truth of what I advance on this subject.
Were it necessary to verify this experience by particular proofs, they
might be multiplied without end. I might find a witness in every
citizen who has shared in, or been attentive to, the course of public
administrations. I might collect vouchers in abundance from the records
and archives of every State in the Union. But as a more concise, and at
the same time equally satisfactory, evidence, I will refer to the
example of two States, attested by two unexceptionable authorities. The
first example is that of Virginia, a State which, as we have seen, has
expressly declared in its constitution, that the three great
departments ought not to be intermixed. The authority in support of it
is Mr. Jefferson, who, besides his other advantages for remarking the
operation of the government, was himself the chief magistrate of it. In
order to convey fully the ideas with which his experience had impressed
him on this subject, it will be necessary to quote a passage of some
length from his very interesting “Notes on the State of Virginia,” p.
195. “All the powers of government, legislative, executive, and
judiciary, result to the legislative body. The concentrating these in
the same hands, is precisely the definition of despotic government. It
will be no alleviation, that these powers will be exercised by a
plurality of hands, and not by a single one. One hundred and
seventy-three despots would surely be as oppressive as one. Let those
who doubt it, turn their eyes on the republic of Venice. As little will
it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM
was not the government we fought for; but one which should not only be
founded on free principles, but in which the powers of government
should be so divided and balanced among several bodies of magistracy,
as that no one could transcend their legal limits, without being
effectually checked and restrained by the others.